1. A sheriff department's policy requiring that all persons arrested for driving under the
influence be jailed for 12 hours before being allowed to post bail is unlawful absent an
individualized determination by an officer that the person arrested is intoxicated and
dangerous to himself or herself or others.

2. The individualized determination by an officer must be based upon the personal
observations of the officer and be reasonable under the circumstances.

3. The general rule is that an unlawful detention, absent a showing of specific prejudice to
the
defendant's right to a fair trial, is not sufficient to justify the dismissal of criminal charges.

ALLEGRUCCI, J.: This is a consolidated appeal taken by the State from the district
court's dismissals of driving under the influence (DUI) charges against Robert Cuchy, Franklin
Gent, and David White. The district court found constitutional fault with a sheriff department's
policy of requiring DUI arrestees to remain in jail for 12 hours before being allowed to post bond.
The State appeals pursuant to K.S.A. 22-3602(b)(1).

Each defendant was charged in Pottawatomie County with DUI in violation of K.S.A.
2000
Supp. 8-1567. At the time of their arrests, the policy at the Pottawatomie County jail was to hold
DUI arrestees for 12 hours. In accordance with the policy, each defendant was confined at least
12 hours.

In each case an order was issued removing the matter from the magistrate judge to the
district court. The district court dismissed the cases against Cuchy and Gent on the ground that
the established policy, which required DUI offenders to serve 12 hours' mandatory jail time before
being allowed to post bond, violated constitutional guarantees of due process and against double
jeopardy. The trial judge referred to his own ruling in an earlier DUI case, State v.
McDowell,
Pottawatomie District Court Case No. 98TR1932, that the policy of detaining DUI arrestees for
12 hours irrespective of their ability to make bond violated constitutional protections. The district
court expressly dismissed with prejudice the DUI charges against Cuchy and Gent. The State
appealed from the district court's orders dismissing the DUI charges.

The order of dismissal in White's case does not specify that dismissal of the DUI charge
was with prejudice. The district court dismissed the DUI charge against White on the ground that
the policy of 12 hours' mandatory jail time violated the constitutional guarantee against double
jeopardy. The district court referred the other charges against White back to the magistrate court
for further proceedings. The State appealed from the district court's order dismissing the DUI
charge.

The district court's orders dismissing the charges against defendants do not include
reasons
why the district court concluded that the 12-hour detention policy was unconstitutional. The
orders state only that double jeopardy and due process are implicated. At the hearing on White's
motion to dismiss, the trial judge voiced the opinion that the 12-hour detention amounted to a
precondition of bond. In that regard, he stated:

"[W]hen a judge sets bond, the judge can make any condition of bond that's
appropriate
for the safety of the community, including the judge can make a person who is
intoxicated sit in jail. 'Yeah, here's his bond but he's going to sit there until he's sober.'
That's a safety issue. Here, the policy was a precondition of even being able to make
bond[--]twelve hours and that's defective and that's the way it developed. I don't know
why or how but that's the way it ended up being complied in this county and you can't
have it in my opinion. You can't have an arbitrary requirement that someone's going to
sit in jail as a precondition of bond and without reviewing those circumstances and seeing
what the situation is, even though it is not unreasonable to detain a person for forty-eight
hours without - - up to forty-eight hours before that probable cause determination is
made. That's a different issue. That's not what we have here. What we have here is a
failure to set bond for a given period because of the policy that I think violates the law,
violates the institution."

The trial judge's allusion to 48 hours was based on County of Riverside v.
McLaughlin,
500 U.S. 44, 114 L. Ed. 2d 49, 111 S. Ct. 1661 (1991), which held that a policy of providing
judicial determinations of probable cause within 48 hours of warrantless arrests is generally
satisfactory under the Fourth Amendment to the United States Constitution. As the trial judge
noted, detention pending a probable cause determination is a different issue from detention
pending
appearance before a magistrate for the purpose of obtaining release on bail pending preliminary
examination. The trial judge in the present case mentioned the Due Process and Double Jeopardy
Clauses as bases for dismissing charges against the defendants. The question whether the Fourth
Amendment "promptness" requirement might govern appearance before a magistrate for the
purpose of obtaining release, as well as probable cause determinations, was not addressed by the
trial judge.

The dispositive issue raised on appeal is whether the district court erred in dismissing the
DUI charges against the defendants. In resolving that issue, we need to first determine if the
sheriff department's 12-hour detention policy violates statutory or constitutional rights of the
defendants. More specifically, we need to determine whether the policy constitutes an
"unnecessary delay" under K.S.A. 2000 Supp. 22-2901 (1), or violates the Fifth Amendment Due
Process and Double Jeopardy Clauses, or violates the right to make bail under Section 9 of the
Kansas Constitution Bill of Rights.

The defendants were charged with DUI in violation of K.S.A. 2000 Supp. 8-1567. K.S.A.
8-2104(a) provides:

"When a person is stopped by a law enforcement officer for any violation
of any
provision of the uniform act regulating traffic on highways not amounting to a felony, the
person shall be taken into custody and taken without unnecessary delay before a judge of
the district court . . . if . . . such person is to be charged with a violation of K.S.A. 8-1567
. . . ."

Post-arrest proceedings for criminal cases generally are set out in detail in Chapter 22,
Article 29. K.S.A. 2000 Supp. 22-2901(1) provides in part: "If the arrest has been made on
probable cause, without a warrant, [the defendant] shall be taken without unnecessary delay
before
the nearest available magistrate and a complaint shall be filed forthwith." The magistrate sets the
"terms and conditions of the appearance bond upon which the defendant may be released."
K.S.A.
2000 Supp. 22-2901(3). Defendants contend that the 12-hour-detention policy is unlawful
because it creates unnecessary delay contrary to the statute. They also build constitutional
theories
on the foundation of the statute.

Under either K.S.A. 8-2104(a)(2) or K.S.A. 2000 Supp. 22-2901(1), the requirement is
for
an arrestee to be taken before a judge or magistrate "without unnecessary delay." However, the
phrase "without unnecessary delay" is not statutorily defined. Nor has a definition been judicially
created for it.

Since the United States Supreme Court decided County of Riverside in 1991,
this court has
considered the 22-2901(1) promptness requirement in State v. Wakefield, 267 Kan.
116, 977 P.2d
941 (1999). For his part in a residential burglary and the murders of the occupants, Wakefield
was
convicted of murder, aggravated burglary, and felony theft. He was arrested a few days after the
murders on September 17 at 7:30 in the morning; he was taken before the magistrate for first
appearance the afternoon of September 19. "Clearly, Wakefield was not taken for first
appearance
without delay." 267 Kan. at 125. The court viewed the delay as warranted, however, by the need
for a thorough investigation to determine whether and against which co-felon capital murder
would be charged. 267 Kan. at 124-25. Thus, there was no unnecessary delay.

Wakefield teaches that "without unnecessary delay" is a flexible concept
dependent upon
the circumstances. The State argues that the purpose of the policy to detain DUI arrestees for 12
hours before allowing them to gain release is to protect the public by making certain that the
arrestee is no longer under the influence when released. Stated otherwise, it is the State's position
that the "under the influence" circumstances of DUI arrests warrants the period of automatic
detention. Essentially, the State argues that the delay of 12 hours in this circumstance is not an
unnecessary delay under K.S.A. 2000 Supp. 22-2901 (1).

Defendants would have this court reject the State's contention on several grounds: (1) that
there are widely varying degrees of "under the influence" and "under the influence" is not
necessarily the same as intoxicated, (2) that public safety would be taken into account by a
magistrate who would fashion the conditions of release to ensure it, and (3) that public safety is
not an issue when an arrestee is released into the custody of a responsible person. Defendants cap
their arguments with the assertion, which does not seem to be denied by the State, that the
automatic 12-hour detention policy does not apply for other offenses, such as disorderly conduct,
where a defendant may be under the influence or intoxicated.

Due to its intrinsic inflexibility, a policy of automatically detaining probable cause
arrestees
for a fixed number of hours might be said to violate the without unnecessary delay requirement
under the flexible approach used in Wakefield. The lack of individualized
determinations, at the
least, creates circumstances in which there would be unnecessary delay for some detainees.

As to the constitutional violations, defendants first contend that K.S.A. 2000 Supp.
22-2901 codifies the Fourth Amendment case County of Riverside, but there is no
merit to that
suggestion. This statute substantially predates the Supreme Court's County of
Riverside decision.
See L. 1970, ch. 129, § 22-2901. More significantly, the statute governs appearances
before a
magistrate pending release rather than judicial determinations of probable cause.

Defendants also contend that K.S.A. 2000 Supp. 22-2901 creates a procedural due
process
right. The contention is that the statute creates a protected liberty interest for a person arrested
without a warrant in being taken before a magistrate without unnecessary delay and that the
12-hour detention policy deprives the arrestee of the liberty interest without fair procedures. The
only
Kansas case defendants cite for this proposition offers little, if any, support. In Davis v.
Finney, 21
Kan. App. 2d 547, 902 P.2d 498 (1995), the Court of Appeals affirmed the district court's denial
of Davis' K.S.A. 60-1501 petition. The Court of Appeals declined to review Davis' claim of
deprivation of due process because the record did not show that he was subjected to any
discipline
that represented a significant and atypical hardship not contemplated in the original sentence. 21
Kan. App. 2d at 559.

Defendants cite several foreign cases involving automatic detainment to the court's
attention. In those cases the courts invalidated the practices and policies on varying grounds.

In City of Jamestown v. Erdelt, 513 N.W.2d 82 (N.D. 1994), the Supreme
Court of North
Dakota affirmed the trial court's dismissal of defendant's DUI charge on the ground that she was
illegally jailed without bond. Although defendant's bond was immediately available, she was
detained for 8 hours pursuant to the City's practice. Two statutes were said to apply--a public
intoxication statute that had been interpreted to require individualized determinations of the
degree
of intoxication and of dangerousness and the bail statute that did not permit municipal courts to
authorize minimum periods of detention without bail. Reading the applicable statutes so as to
avoid conflict with the right to bail guarantee contained in the state constitution, the appellate
court concluded that the statutes did not authorize "'blanket minimum periods of detention, prior
to release pending trial, for all DUI arrestees.'" 513 N.W.2d at 85. The constitutional provision
stated in part: "All persons shall be bailable by sufficient sureties, unless for capital offenses when
the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive
fin[e]s imposed, nor shall cruel or unusual punishments be inflicted." North Dakota Const., art. 1,
§ 11, quoted at 513 N.W.2d at 85 n. 2.

The North Dakota case is noted in the Rutgers Law Journal's annual survey of case law
developments in state constitutional law, DiCuollo, "Criminal Procedure: Trial and Post-Trial
Issues," 26 Rutgers L. J. 1177 (1995). The author stated:

"The North Dakota Supreme Court, in Jamestown v. Erdelt,
ruled that a city
ordinance requiring an eight hour detention for all persons who are suspected of driving
under the influence violates North Dakota's constitutional clause concerning the right to
bail. The court construed the ordinance as permitting individualized determinations of
whether persons are intoxicated and therefore dangerous to the public or himself if
released on bail. However, the testimony of a police officer acknowledged that he
followed a blanket policy of presumptive detention. Because a person can be under the
influence without being intoxicated, the court reasoned, the city may not assume that all
persons arrested for DUI are intoxicated. Moreover, if an arrestee posts bond and is
capable of leaving with a responsible person, any danger to himself or to the public is
minimized. The city's expansive interpretation of the statute, therefore, threatened the
right to bail because of the automatic deprivation of liberty for noncapital offenses. Thus,
although the ordinance was valid to the extent it detained DUI arrestees who are
considered dangerous, the ordinance was unconstitutional as applied in this case because
'dangerous' must be an individualized determination and not a blanket presumption." 26
Rutgers L. J. at 1195-96.

In State v. Thompson, 349 N.C. 483, 490, 508 S.E.2d 277 (1998), defendant
waived his
arguments regarding state constitutional violations. On his federal constitutional arguments, the
North Carolina Supreme Court concluded that a state statute governing bail and pretrial release of
persons accused of committing crimes of domestic violence, "as applied to defendant under the
discrete facts presented," deprived him of his federal constitutional right to procedural due
process
by denying him a meaningful and timely opportunity to be heard. 349 N.C. at 486, 503. The
North Carolina court declined to reach the questions of substantive due process and double
jeopardy. 349 N.C. at 503.

In recognition that some individuals charged with domestic violence may pose a threat to
their victims after being released on bond, the North Carolina Legislature initially empowered
judges and magistrates, upon a finding that immediate release posed a danger to the victim, to
order pretrial detention for a "reasonable period" while determining the conditions of the
arrestee's
release. Approximately 20 years later the legislature took from magistrates their authority to
order
preventive pretrial detention, except where no judge had acted within 48 hours of arrest. As a
result, according to the North Carolina court "the arrestee 'must be held in jail,' without a
consideration of the specific facts of his or her case, 'until a judge [or, after 48 hours, a
magistrate]
sets conditions of pre-trial release.'" 349 N.C. at 487. Under the amended statute, defendant was
held in jail for 48 hours on three misdemeanor charges before being released on bond.

Following the lead of Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S.
Ct. 1861
(1979), the North Carolina court considered whether the statutorily authorized detention ought to
be classified as a regulatory restraint or a punitive measure and determined that it was regulatory.
Based principally on that determination and Supreme Court precedents, including County of
Riverside, the court concluded that the statute was not facially violative of either
substantive or
procedural due process. 349 N.C. at 492-95. Thompson's double jeopardy contention was that
the pretrial detention exposed him to multiple punishment, pre- and post-trial, for the same
offense.
The court's determination that the pretrial detention was not punitive somewhat undercut the
argument. The North Carolina court stated an additional reason why there was no facial violation
of double jeopardy principles--the statute "does not require pretrial detention or
prescribe any
minimum period of detention." 349 N.C. at 496. For defendants given a pretrial release hearing
immediately after arrest, there would be no issue.

Although the North Carolina court found no merit in Thompson's challenge to the facial
validity of the statute, it was persuaded that the statute was unconstitutionally applied to him.
The
court concluded that application of the statute

"significantly harmed defendant's fundamental right to liberty when unreasonable
delay
prevented him from receiving a prompt post-detention hearing before the first available
judge regarding the conditions of his pretrial release. Because defendant did not obtain
his hearing before a judge regarding his bail and conditions of release 'as soon as [was]
reasonably feasible,' County of Riverside, 500 U.S. at 57, 114 L. Ed. 2d at 63,
defendant
was detained longer than necessary to serve the State's interest in having a judge, rather
than a magistrate, determine the conditions of his pretrial release. As such, defendant
was not given an opportunity to be heard 'at a meaningful time and in a meaningful
manner,' Armstrong, 380 U.S. at 552, 14 L. Ed. 2d at 66, and the application of [the
statute] violated his procedural due process rights." 349 N.C. at 502-03.

In the present case, with the "authority" for the prolonged detainment being a local policy
rather than a statute, any distinction between facial and applied validity or invalidity is blurry. The
district court's rulings principally addressed the invalidity of the 12-hour detainment policy, as
well
as its application. The district court found in each case that the defendant would have been able
to
make bond sooner but was detained for 12 hours pursuant to the policy.

The district court concluded that double jeopardy was implicated by the potential for dual
detainment, pre- and post-trial, for the same offense. If the reasoning of the North Carolina court
were to be applied here, a pivotal question would be whether the policy is punitive or regulatory.
There is no evidence that would support a finding that it is punitive, and the State asserts that the
purpose is public protection. As a regulatory measure, the 12-hour detention policy probably
would not give rise to a double jeopardy claim.

The district court also concluded that the 12-hour detention policy violated due process.
The district court's conclusion does not conform with this court's statement in
Wakefield: "Even
an unwarranted delay in taking the accused before a magistrate after he or she has been arrested is
not in itself a denial of due process unless that delay has in some way prejudiced the right of the
accused to a fair trial." 267 Kan. at 125. No such showing was made in the present cases.

However, we find the rationale of the North Dakota Supreme Court to be both instructive
and persuasive. Construing K.S.A. 2000 Supp. 22-2901(1) in harmony with the right to make
bail
guaranteed by our state constitution, we conclude that the 12-hour mandatory detention of the
defendants was unlawful. The detention of a person arrested for DUI is permissible if an officer
determines, based upon his or her personal observations, that the arrestee is intoxicated and a
danger to himself or herself or others. That individualized determination must be reasonable
under
the circumstances, and the officer may not assume that all persons arrested for DUI are
intoxicated
and dangerous. Absent such a determination, the mandatory detention policy violates K.S.A.
2000
Supp. 22-2901(1) in that an arrestee is not brought before a magistrate or judge without
unnecessary delay and is denied the right to make bail.

Here the officer made no individualized determination of the intoxication and
dangerousness of the defendants. The officer jailed the defendants based solely on the 12-hour
detention policy. Thus, the defendants were not taken before a magistrate or judge "without
unnecessary delay" and were denied their constitutional right to make bail. Therefore, the
detention of the defendants was unlawful.

The State argues that even if the detention of the defendants was unlawful, dismissal was
not an appropriate sanction. In the State's view, a dismissal is appropriate where a less severe
sanction would not protect against abuse or where it is required in the interests of justice.

In State v. Crouch & Reeder, 230 Kan. 783, 788, 641 P.2d 394 (1982),
the court held that
dismissal of criminal charges for the State's failing to comply with the promptness provision of
K.S.A. 22-2901 was inappropriate unless no other remedy would protect against abuse.
Defendants were arrested on probable cause on July 3. Bond was set on the next working day,
July 6, but defendants were not advised. It was not until July 10 that a formal complaint was filed
charging defendants with automobile theft. They were taken before the district court on July 14
for their first appearance. Defendants were released on bond on July 17. The trial judge
dismissed
the complaints for direct violation of K.S.A. 22-2901. In his view, the delay was inherently
prejudicial and constituted cruel and unusual punishment. On the State's appeal, this court
disagreed that defendants' 11-day detention before seeing a magistrate "resulted in such prejudice
to their statutory and constitutional rights that it warranted the dismissal with prejudice of the
charges against them." 230 Kan. at 784. The court reversed and remanded with directions to set
aside the orders of dismissal, to reinstate the complaint, and to commence pretrial proceedings.
230 Kan. at 788. Three justices dissented on the ground that the standard of review is abuse of
discretion and the trial judge had not abused his discretion. 230 Kan. at 788-89.

In State v. Hershberger, 27 Kan. App. 2d 485, 5 P.3d 1004, rev.
denied, 270 Kan. ____
(2000), the Court of Appeals considered a defendant's contention that the case against him ought
to have been dismissed due to delay in conducting his probable cause hearing. Hershberger had
been convicted of driving while his license was suspended. The Court of Appeals concluded that
he "failed to prove his detention prejudiced his ability to prepare his defense to the charge.
Consequently, dismissal of the case is not an appropriate remedy." 27 Kan. App. 2d at 491. The
court syllabus included this statement of the guiding principle: "An appropriate remedy for failure
to conduct a timely probable cause hearing will depend on the particular facts and circumstances
of
the case, but dismissal of charges is an extreme remedy only warranted if the prolonged detention
substantially impedes a defendant's ability to prepare a defense." 27 Kan. App. 2d 485, Syl.
¶ 3.

An Ohio case illustrates how an automatic detention policy may operate to deprive a
defendant, who poses no public safety threat, of the opportunity to prepare a defense. State
v.
Meyers, 59 Ohio Misc. 124, 394 N.E.2d 1037 (1978), is a reported opinion from
Miamisburg
Municipal Court. The defendant was arrested and incarcerated. He asked permission to be
released to his father, who was willing and able to post bond and transport him to a hospital for
the
purpose of obtaining an independent chemical analysis. Defendant's father was turned away
pursuant to the Miamisburg Police Department's policy of incarcerating persons charged with
DUI
for 6 hours irrespective of availability of bond. Defendant's father "was a competent and
responsible individual who could receive the custody of the defendant." 59 Ohio Misc. at 127.
Defendant argued that the results of the chemical test should be suppressed because he was
denied
his right to post bail until after 6 hours had elapsed and consequently denied his statutory and due
process right to a second chemical test. The municipal court agreed that in the circumstances,
defendant did not pose a threat to the safety of the community and should not have been detained
pursuant to a policy of automatic detention. Defendant's motion to suppress was granted. 59
Ohio Misc. at 127.

In none of the cases presently before this court has it been claimed that the opportunity to
prepare a defense was lost as a result of the automatic detention policy. Thus, under the rule
most
recently stated in Hershberger, the automatic 12-hour detainment of these defendants
by itself
would not warrant dismissal. It is a simple matter to imagine, however, other circumstances, such
as those in the Ohio case, in which the prolonged detention could substantially impede a
defendant's ability to prepare a defense.

In City of Jamestown, the North Dakota Supreme Court affirmed the district
court's
dismissal of the case without a showing of prejudice to the defendant's right to a fair trial. 513
N.W.2d at 86. The court did so after noting that unlawful detention, absent a showing of specific
prejudice to the defendant's right to a fair trial, is not sufficient to support a dismissal of the
criminal charges. 513 N.W.2d at 85. However, the court went on to say:

"Despite the absence of actual prejudice, we have affirmed a dismissal of charges
for
unlawful detention as a sanction for institutional non-compliance and systematic disregard of the
law. (Citations omitted.) We conclude this sanction is appropriate here." 513 N.W.2d at 86.

The North Dakota Supreme Court previously had decided two cases that clearly required
an officer to "make individualized determinations of whether a person is apparently intoxicated
and
dangerous. The outcome of those determinations is left to the experience, judgment and
discretion
of the officer and not a blanket policy applicable to all persons arrested for DUI." 513 N.W.2d at
86. Thus, the sanction of dismissal was warranted because the city disregarded the prior
decision of the court. That is not the case here.

We agree that once a decision disapproving automatic detention is made or filed by
the court, subsequent dismissals for unlawful detention under a blanket policy would be
justified without a need to show prejudice. Here, the district court believed the officers
disregarded its ruling made in a previous case. However, the decision by the district judge
in State v. McDowell was made after the defendants herein were arrested for DUI.
Thus,
the officers did not disregard a previous ruling or decision by the district court in detaining
the defendants, and the dismissals were not warranted. The dismissal orders issued by the
district court are reversed, and the cases are remanded with directions to reinstate the
charges against the defendants.